Elliott, In re

• Decision Date: 06 August 1996
• Docket Number: 185425,Nos. 185137,s. 185137
• Citation: 218 Mich.App. 196,554 N.W.2d 32
• Parties: In re Tyler James ELLIOTT, Minor. DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Stepfanie (LeBlanc) BOYD and Paul Elliott, Respondents-Appellants, and Sault Ste. Marie Tribe of Chippewa Indians, Intervenor.
• Court: Court of Appeal of Michigan — District of US

Page 32

554 N.W.2d 32

218 Mich.App. 196

In re Tyler James ELLIOTT, Minor.

DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Stepfanie (LeBlanc) BOYD and Paul Elliott, Respondents-Appellants, and Sault Ste. Marie Tribe of Chippewa Indians, Intervenor.

Nos. 185137, 185425.

Court of Appeals of Michigan.

Submitted Feb. 21, 1996, at Grand Rapids.

Decided Aug. 6, 1996, at 9:35 a.m.

Released for Publication Sept. 27, 1996.

James J. Gregart, Prosecuting Attorney and Michael H. Dzialowski, Assistant Prosecuting Attorney, Kalamazoo, for petitioner.

James A. Bransky, Traverse City, for Stephanie Boyd.

Frederick R. Hubbell, Kalamazoo, for Paul Elliott.

Before MARKEY, P.J., and HOLBROOK and M.J. MATUZAK, ^* JJ.

HOLBROOK, Judge.

Respondents, Stepfanie Boyd and Paul Elliott, appeal as of right from a Kalamazoo County Probate Court order terminating their parental rights to Tyler James Elliott, who was 3 1/2 years old at the time of trial. In this appeal, we must determine whether the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. § 1901 et seq., was applicable to this proceeding in the first instance and, if so, whether the probate court failed to comply with the act, rendering the termination order invalid. Because we hold that the answer to both these questions is yes, we reverse and remand for a new hearing.

I

In October 1993, a protective services worker filed a complaint with the Kalamazoo County Probate Court, alleging that (1) in August 1992, respondent-mother had smoked marijuana in Tyler's presence, (2) in April 1993, she had left Tyler alone for several hours while she was at work, and (3) in September 1993, she had left Tyler alone in a cold motel room strapped in a car seat, wearing only a diaper. The matter was referred to the Kalamazoo County Department of Social Services, and a petition was filed with the probate court, asserting that the court should take jurisdiction of the child. Despite numerous hearings before the court between October 1993 and November 1994, it was not discovered that Tyler was an "Indian child," as defined in § 1903(4) of the ICWA, 25 U.S.C. § 1903(4), until the termination hearing began in February 1995. At that time, two caseworkers from Catholic Family Services Eric Janssen and Tere Marshall, testified, recommending that respondents' parental rights be terminated. Respondent-father then took the stand and for the first time the court was made aware of the fact that respondent-mother was a member of, or eligible for membership in, the Sault Ste. Marie Tribe of Chippewa Indians. ¹ The court ultimately adjourned the proceedings to allow for investigation of this issue and, if necessary, for notice to be provided to the Chippewa Tribe.

Soon thereafter, the tribe petitioned the court for permission to intervene. The court entered an order permitting intervention after determining that this matter constituted a "child custody proceeding" as defined in § 1903(1) of the ICWA, 25 U.S.C. § 1903(1), and recognizing that Tyler is an "Indian child" as defined in § 1903(4), inasmuch as he is the biological child of respondent mother, an enrolled member in the Chippewa Indian Tribe, and, accordingly, was eligible for membership in the tribe. When the proceedings were subsequently reconvened in April 1995, respondent-mother's counsel requested that the proofs be reopened so that updated information could be presented regarding the mother's resolve to comply with the parent-agency agreement. Respondent-father's counsel argued that because termination of parental rights under the ICWA required qualified expert testimony, the court would need to "start over." Petitioner argued that sufficient evidence had been presented at the earlier hearing to support termination, even under the strict standards of the ICWA. The court decided to proceed, explaining as follows:

It may be true that if this matter were to be tried under the [ICWA], there would be an opportunity for the provision of expert testimony regarding the placement of the child in an Indian versus a non-Indian home. However, in reviewing the file, I note that there has never been any particular involvement on the part of Ms. LeBlanc or her child in a Native American reservation or family or lifestyle. This is one of the issues that I think the expert testimony would go to in terms of maintaining social and cultural ties. To the best of our ability to discern from the court records, that has not been a primary focus of this child's life in the custody of his mother. So I'm not real sure that that justifies a basis for delaying a decision in this case.

After proceeding to terminate respondents' parental rights, the court stated:

I do not believe that the issues relating to whether the child is--or is eligible for membership in a Native American tribe outweigh the fact that the Native American element has not been a consistent component of his life from the time he has been born. And certainly not from the time that his mother came to live in Kalamazoo and pursue her own career.

II

A

Pursuant to the ICWA, child custody proceedings involving foster care placement or termination of parental rights to an Indian child are subject to specific federal procedures and standards. In re Johanson, 156 Mich.App. 608, 611-612, 402 N.W.2d 13 (1986). As a declaration of policy, Congress established these "minimum Federal standards for the removal of Indian children from their families" to protect the best interests of Indian children and to promote the stability and security of Indian tribes and their families. 25 U.S.C. § 1902. The act is intended not only to protect the interests of individual Indian children and families but also to protect the interest of the tribes themselves in long-term tribal survival. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). The underlying rationale of the act is to discourage Indian child welfare determinations from being based on " 'a white middle-class standard.' " Id. at 37, 109 S.Ct. at 1602, quoting H.R.Rep. No. 95-1386, 95th Cong., 2d Sess., at 24, reprinted in U.S. Code Cong. & Admin. News 7530, 7546 (1978).

Pursuant to § 1914 of the ICWA, 25 U.S.C. § 1914, an "Indian child," any "parent or Indian custodian," or "the Indian child's tribe" may petition any court of competent jurisdiction to invalidate the foster care placement or termination of parental rights under state law "upon a showing that such action violated any provision" of §§ 1911, 1912, and 1913 of the ICWA, 25 U.S.C. §§ 1911, 1912, 1913. See also Johanson, supra at 612, 402 N.W.2d 13. Respondents assert that the probate court failed to comply with certain provisions of the act, resulting in an invalid termination order. Petitioner argues in favor of upholding the termination order, asserting that the ICWA was inapplicable because termination of respondents' parental rights would not result in the break-up of an Indian family, given that neither respondent-mother nor the minor child had shown any particular involvement in the Native American culture.

Respondents' various claims on appeal arise from the probate court's failure to comply with § 1912 of the ICWA, 25 U.S.C. § 1912, which provides in pertinent part:

(a) In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.... No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe....

* * * * * *

(d) Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

(e) No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

(f) No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

See also MCR 5.980 (procedure for child custody proceeding involving Indian child who resides off reservation, as in this case).

Here, the probate court created an exception to strict application of the ICWA by finding that "testimony of qualified expert witnesses" was unnecessary given the lack of involvement by the mother or minor child in Indian culture. We agree with respondents that the court committed clear legal error in its interpretation of the ICWA and that the court's termination order is invalid. Although some jurisdictions have adopted the "existing Indian family" exception to the ICWA, we do not find the analysis of those cases to be persuasive. See, e.g., Hampton v. J.A.L., 658 So.2d 331 (La.App.1995), aff'd 662 So.2d 478 (1995); In re Adoption of Crews, 118 Wash.2d 561, 825 P.2d 305 (1992); In re S.C., 833 P.2d 1249 (Okla.1992); In re Adoption of T.R.M., 525 N.E.2d 298 (Ind.1988); In re Adoption of Baby Boy L., 231 Kan. 199, 643 P2d 168 (1982).

Instead, we prefer the view adopted by those courts that have...